Tuesday, 21 February 2017

Anastasia Karatzia, Assistant Professor in EU law, Erasmus School
of Law

Introduction

On Friday the 3rd of February,
the General Court (GC) annulled for the first time a Commission Decision
refusing registration of a proposed European Citizens’ Initiative (ECI), on the
ground that the Commission infringed its duty to give reasons for its decision.
Minority SafePack is a short judgment
concerning procedural matters yet at this early stage of the ECI, which was
established in 2012, any judgment clarifying the applicable legal framework is
worthy of attention from those interested in the ECI and more generally in the
opportunities for citizens’ participation in EU lawmaking.

For those unfamiliar with the
topic, the ECI
is an instrument that allows EU citizens to request the Commission to consider
an idea as a possible basis for a legislative proposal. Its legal framework
consists of Articles 11(4) TEU, 24 TFEU, and Regulation
211/2011 (the ECI Regulation) which sets out the detailed procedure for
bringing an ECI. The organisers of an ECI have one year to collect one million
signatures supporting their idea in order for it to be considered by the
Commission, which ultimately has the discretion to respond.

The first step in the entire
process is to submit an ECI proposal to the Commission for registration. An ECI
cannot be registered by the Commission (i.e. organisers cannot start collecting
signatures) if it proposes action that ‘falls manifestly outside the
competences of the Commission to propose legislation’ (Article 4(2)(b) of the ECI
Regulation). If the Commission refuses to register an ECI, it is obliged under
Article 4(3) of the ECI Regulation to inform the organisers of the reasons for
such refusal. The Commission sends a letter of reply to the organisers, which
it then publishes in the ECI website.
Generally speaking, this so-called ‘legal admissibility test’ has been the
subject of academic analysis and discussion since the beginning of the ECI[1],
with stakeholders often arguing that the
test is an obstacle to the effectiveness of the ECI.

In July 2013, the members of the
Federal Union of European Nationalities (FUEN) (hereafter ‘ECI organisers’)
submitted their proposal
for an ECI entitled ‘Minority SafePack – One million signatures for
diversity in Europe’, which they characterised
as ‘the most important initiative of the minorities in Europe in recent
decades.’ ‘Minority SafePack’ proposed EU action in numerous policy areas
aiming to improve ‘the protection of persons belonging to national and
linguistic minorities and strengthen cultural and linguistic diversity in the
Union.’ In September 2013, the Commission decided to refuse registration of the
said ECI on the basis of Article 4(2)(b) of the ECI Regulation. It is the
legality of this decision that the ECI organisers challenged before the GC
under Article 263 TFEU.

Legal & Factual Background

According to Article 4(1) of the
ECI Regulation, organisers must submit their ECIs through
the online Commission register by providing the information specified in
Annex II of the ECI Regulation. Annex II requires the following information:
the title, subject matter, and objectives of the proposed ECI; the Treaty
provisions considered relevant by the ECI organisers for the proposed ECI;
personal details of the ECI organisers; and all the sources of funding for the
ECI at the time of registration. The word limit for the description of the
proposed ECI’s subject matter and objectives are, respectively, 200 characters
(approx. 190 words) and 500 characters (approx. 430 words).

Notably for the purpose of our
discussion, Annex II of the ECI Regulation allows organisers to provide an
annex to their registration form with additional information on the subject,
objectives, and background to the proposed ECI; and the organisers are also
allowed to submit a draft act. The organisers of ‘Minority SafePack’ chose to
submit a document
with further detailed information about their proposed ECI. The document set
out eleven proposed legal actions (incl. a Regulation and a Council Directive)
in six areas: language, education, and culture; regional policy; participation;
equality; media; and support for minority communities. It also includes a
so-called ‘saving clause’, asking the Commission to consider each of the eleven
proposals separately on their own merits, and to register only part of the ECI
if it considered that only some of the proposals were deemed to be inadmissible
(see paras 25-26).

In the case before the GC, the
first argument of the applicants concerned an alleged infringement by the
Commission of the essential procedural requirement to give reasons. The applicants
contested the lack of an explanation by the Commission as to which of the
eleven acts suggested by the Initiative failed to comply with Article 4(2)(b)
of the ECI Regulation and as to why this was so. To that effect, they argued
that the Commission infringed Article 296(2) TFEU and Article 4(3) of the ECI
Regulation. Moreover, they complained that the Commission failed to explain its
position that the ECI Regulation does not allow for the registration of at
least a part or parts of a proposed ECI. Indeed this position of the Commission
is neither explicitly stated in the ECI Regulation, nor further explained in
the letter of reply. Moreover, the applicants also argued that none of the
topics for which the Commission was asked to submit a proposal manifestly fell
outside the framework of the Commission’s powers to submit a proposal for a
legal act (paras 8-12).

The main counter-argument of the
Commission was that its decision stated the main reasons for refusing the
registration on the basis of the subject matter of the proposed ECI as
stipulated in the registration form. Any additional information provided by the
organisers (e.g. the additional document with the specific ECI proposals) was
only indicative and informative, and could not be seen as expanding or limiting
the subject matter of the ECI. The Commission stressed that it is not obliged
to explain the reasons behind its position that Article 4(2)(b) of the ECI
Regulation does not allow partial registration of an ECI (paras 13-14).

The General Court’s judgment

With ample references to its
judgment in the first ECI-related case, namely Anagnostakis
v Commission(which concerned the relief of Greek debt), the GC began
by reiterating the twofold purpose behind the obligation of EU Institutions
under Article 296(2) TFEU to give reasons for their decisions (para 15). This
obligation aims (i) to ensure that the person concerned has sufficient
information to determine whether the decision is well-founded; and, (ii) to
enable the exercise of judicial review over the reasoning of the relevant
decision by the EU Courts. In the context of the ECI, this obligation is given
specific expression in Article 4(3) of the ECI Regulation.

Subsequently, the GC explained
that the requirement to give reasons must be assessed vis-à-vis the nature of
the measure, as well as the content of the measure and the nature of the
reasons given by the EU Institution. It acknowledged that the reasoning does
not have to explain all the details behind the relevant decision, but the
extent of the obligation to give reasons needs to be assessed in the light of
the context of each case (para 16). In the case at hand, the GC explained the
context as follows: Article 24(1) TFEU gives citizens a right to submit an ECI
(see Anagnostakis para 26), and a
decision refusing registration of an ECI may impinge upon the effectiveness of
this right. Therefore a Commission decision refusing registration ‘must
disclose clearly the grounds justifying the refusal’ in order to enable the
citizen whose ECI was rejected to understand the different reasons for the
refusal and appraise it accordingly (paras 17-18).

It is on this basis that the GC
then went on to assess the reasons given by the Commission for the refusal to
register ‘Minority SafePack’ (see also para 22). The Commission
decision set out three short reasons for the refusal. Firstly, even though
Article 2 TEU refers to the respect for the rights of persons belonging to
minorities as one of the values of the EU referred to in Article 2 TEU, there
is no legal basis for the adoption of legal acts to this end. Secondly, Article
3(3) TEU and Article 21(1) of the Charter also cannot be used as legal basis
for EU action. It should be noted here that the additional document submitted
by the organisers proposed twenty legal bases for the suggested actions. Thirdly,
although some of the acts requested in the Annex to the ECI could fall within
the framework of the Commission’s powers, the ECI Regulation does not provide
for the registration of part or parts of a proposed initiative.

According to the GC, even though
the Commission stated the basis for the refusal (i.e. Article 4(2)(b) of the
ECI Regulation), the Commission’s reasoning was manifestly inadequate. The
Commission failed to identify in any way which of the eleven proposals fell
outside the framework of its powers, and failed to give any reasons supporting
its assessment (para 27). As a result, the organisers were prevented from
identifying the proposals which did not comply with Article 4(2)(b), and from
understanding the reasons behind this conclusion. They were also impeded from
re-submitting a new ECI proposal, as they did not have enough information about
the types of acts that would have been accepted by the Commission. The lack of
sufficient reasons also prevented the GC from assessing the legality of the
Commission’s response. At a more general level, the lack of a complete
statement of reasons discouraged citizens’ participation in democratic life and
was contradicted the objective of the ECI to make the EU more accessible to citizens
(para 29).

In addition, the GC reiterated
its ruling in a previous ECI-related case - Izsák
and Dabis v Commission(currently on appeal) - that the Commission
should have considered the information provided in the organisers’ annex as
being equally important to the mandatory information required by Annex II of
the ECI Regulation. According to the GC, Annex II of the ECI Regulation gives a
right to the organisers to submit additional information to the Commission.
Since Annex II has the same binding force as the ECI Regulation, the Commission
- ‘in accordance with the principle of sound administration’ (para 32) - has a
duty to consider any additional information in the same way as it considers the
mandatory information required by Annex II. Therefore, the Commission’s replies
must include the reasons behind the refusal of an ECI in light of all the
information submitted by ECI organisers.

Comment

At first sight, the judgment is
good news for future ECI organisers, as it recognises the effort needed to put
together a legally sound ECI proposal, as well as the limitations in doing so
only through the mandatory information required by Annex II. Had the GC sided
with the Commission’s position, organisers may have found themselves in the
position where they would invest time and effort into writing a proposal stipulating
specific legal bases only for the Commission to then say that it was not
obliged to justify its views on the additional information and the draft legal
acts submitted by the organisers. The Commission itself acknowledges that it
takes into consideration all the possible legal bases in considering whether a
proposal meets the conditions for registration (para 30), so it should not be
an onerous task to expand on its rationale vis-à-vis the specific proposals of
organisers.

Upon closer inspection, it would
appear that the GC’s finding in this and in previous ECI-cases is not
necessarily or always helpful for ECI organisers. This observation becomes
apparent when one looks at the previous case of Iszak and Dabis, which concerned the refusal by the Commission to
register a proposed ECI named ‘Cohesion policy for the equality of the regions
and sustainability of the regional cultures.’ Interestingly, the applicants in
that case made the same argument as the one made by the Commission in Minority
SafePack: additional information should not be given the same weight by the
Commission as that given on mandatory information. The GC disagreed with the
applicants, finding that ‘the “Information set out in Annex II” to which
Article 4 of the [ECI] Regulation refers, is not limited to the minimum
information which must be provided in the register under that Annex.’ In the
view of the GC, this finding does not depend on whether or not the additional
information was or was not in the applicant’s interest.

It seems, therefore, that the Court’s
judgment could play out in two ways for potential ECI organisers. On the one
hand, ECI organisers may be able to rely on it to challenge the Commission’s
reasoning where the latter has not adequately dealt with the additional
information submitted in the registration stage. On the other hand, the Court’s
finding will probably not be particularly helpful for ECI organisers whose ECI
might have been accepted if only the mandatory information had been submitted,
but was rejected because of the additional information.

On a final note, it is rather
unfortunate that the GC did not clarify one other procedural aspect of the ECI.
As mentioned above, the Commission stated in its decision that an ECI with only
some objectives fulfilling the criteria of Article 4(2)(b) cannot be
registered. The GC left open the question whether this interpretation of the
ECI Regulation, which is not specified anywhere in the ECI legal framework, is
legally sound. In para 34, the GC held that it is not necessary to rule on this
question, confining itself to finding that the Commission failed to comply with
its obligation to state reasons. This could be seen as implying that the
Commission may need to justify its interpretation of Article 4(2)(b) of the ECI
Regulation, but this finding does not take away from the question of whether
the Commission’s interpretation of Article 4(2)(b) is correct. Let’s assume,
for example, that the Commission does, indeed, explain the rationale behind its
interpretation of Article 4(2)(b) with regard to partial registration. This
would not automatically mean that the interpretation is legally sound in the
light of the Treaty Articles 11(4) TEU or 24 TFEU or the ECI Regulation. This
is not to argue that the Commission’s current interpretation of Article 4(2)(b)
is correct or not. It is simply to observe that a clarification of this point
by the GC would have been useful.

The ECI is still a young instrument,
so every clarification of its legal background is helpful for its development.
In this regard, the judgment in Minority
SafePack is a welcome addition to the body of law comprising the ECI. The
reaction of the Commission remains to be seen.

Monday, 20 February 2017

Juan Carlos Benito Sánchez, PhD Fellow at the University of Louvain
(Belgium).Twitter: @jcbensan

In the past years, the Court of
Justice of the European Union has delivered a number of judgments striking down
substantive and procedural provisions of Spanish mortgage law, or judicial
interpretations thereof, on the grounds that they were contrary to EU law in
the field of consumer protection. In particular, the Court of Justice has based
its decisions on Council
Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts,
declaring in most of the cases that Spanish mortgage law unduly restricted the
right of consumers to have unfair clauses in their mortgage loan agreements
reviewed and nullified by domestic courts.

This post focuses on the last two
rulings delivered by the Court of Justice in this regard: its judgment in Gutiérrez
Naranjo (Joined Cases C-154/15, C-307/15 and C-308/15, EU:C:2016:980)
and in Banco
Primus (C-421/14, EU:C:2017:60), respectively delivered in December
2016 and January 2017. The first case concerns so-called ‘floor clauses’, which
establish a minimum threshold for the variable rate of interest determined in
mortgage loan agreements. The second case concerns ‘accelerated repayment’
clauses, which allow for the creditor to claim repayment in full of the outstanding
debt in case of arrears during a relatively short period of time, often as
little as three months. Both judgments raise a number of significant issues
with notable implications for EU consumer law and, ultimately, for the
fundamental right to housing of individuals and families.

The judgment in Gutiérrez Naranjo:
setting temporal limitations on the retroactive effect of unfair floor clauses

This first case concerns, in
essence, the temporal limitation that the case law of the Spanish Supreme Court
placed on the retroactive effect of unfair floor clauses included in mortgage
loan agreements. In its (in)famous ruling of 9 May 2013, the Supreme Court
declared that those floor clauses lacking transparency due to insufficient
information for mortgagors were to be considered unfair and, therefore, void.
In practical terms, since the variable rate of interest determined in these
agreements was usually tied to the Euribor—which plummeted owing to the
financial crisis—, many consumers saw the interest in their mortgage loans
plateau at the minimum threshold instead of falling to the much lower market
rate that would apply had floor clauses not been included in the loan. Because
the relevance of these clauses within the agreement was in most instances not
offset by adequate information and transparency for consumers, allowing them to
assess the extent of risk sharing, the Supreme Court affirmed that
non-transparent floor clauses—in practice, the vast majority of them—should be
deemed unfair and, consequently, void.

In the same ruling, however, the
Supreme Court tempered this declaration by determining that the retroactive
effect of the nullity of non-transparent floor clauses was to be limited in
time. In particular, and referring to the principle of legal certainty, it
considered that such nullity should not extend to situations obtaining prior to
the date of delivery of its judgment (9 May 2013). In the Supreme Court’s view,
full retroactivity would otherwise lead to ‘a severe disruption with
consequences for the economic public order’. This interpretation effectively
closed the avenue for consumers to claim the recovery of amounts overpaid on
the basis of non-transparent floor clauses if those payments had been made
prior to 9 May 2013.

The various questions referred to
the Court of Justice for a preliminary ruling in Gutiérrez Naranjo thus seek to determine whether EU law in the
field of consumer protection—specifically, Directive 93/13/EEC—precludes this
temporal limitation. The Court, building on its previous judgments, ruled that
a finding of unfairness regarding a contractual clause ‘must allow the
restoration of the legal and factual situation that the consumer would have
been in if that unfair term had not existed, by inter alia, creating a right to
restitution of advantages wrongly obtained, to the consumer’s detriment, by the
seller or supplier on the basis of that unfair term’ (§ 66). It considered that
a temporal limitation of the legal effects stemming from a declaration of
nullity is ‘tantamount to depriving, in general, any consumer having concluded,
before [9 May 2013], a mortgage loan contract containing such a clause of the
right to obtain repayment in full of the amounts overpaid by the consumer to
the bank’ (§ 72).

This conclusion does not come
unexpected considering the Court of Justice’s settled case law on Directive
93/13/EEC. Yet the judgment in Gutiérrez
Naranjo goes a step further: the Court of Justice found that ‘it is for the
Court alone, in the light of the fundamental requirement of a general and
uniform application of EU law, to decide upon the temporal limitations to be
placed on the interpretation it lays down in respect of [a rule of EU law]’ (§
70). In other words, the Court of Justice clarified that domestic courts cannot
restrict in time the effects of a rule of EU law of their own accord. The
general and categorical terms in which this statement is framed suggest
wide-ranging implications extending far beyond the realm of consumer
protection.

The judgment was widely reported
by Spanish media and was welcomed as a significant triumph of civil society
organisations defending the right to housing in Spain, which had made floor
clauses one of their more visible claims. The Spanish government rushed to
create a new extrajudicial mechanism to settle consumers’ claims for recovery of
amounts overpaid on the basis of non-transparent floor clauses, which has been
widely criticised in that it creates uncertainty for consumers and does not
impose sanctions for non-compliant mortgage lenders. Very recently, on 15
February 2017, the Spanish Supreme Court delivered its first judgment amending
its previous case law to this effect and confirming the full retroactivity of
unfair floor clauses in a mortgage loan agreement.

This second case concerns, in
essence, the limitations placed by Spanish mortgage law and in the case law of
the Spanish Supreme Court on the possibility for courts to declare the nullity
of unfair accelerated repayment clauses in mortgage loan agreements.
Accelerated repayment clauses, as explained above, allow for the creditor to
claim repayment in full of the outstanding debt (principal and interest) in
cases of non-payment of a very reduced number of instalments by the debtor. In
practical terms, this entails that if a mortgagor falls into arrears for,
usually, three months—out of their thirty-, forty-, or fifty-year loan term—,
the lending institution may call in the full amount of the loan. Following the
impossibility for the debtor to make such a large payment, the lender will
normally bring mortgage enforcement proceedings, sometimes under the special
distraint procedure foreseen in Spanish mortgage law, which will end in turn in
foreclosure and eviction.

Accelerated repayment clauses
have been routinely included by mortgage lenders in loan agreements for years,
and their execution, especially in the aftermath of the financial and housing
crisis in Spain, can be identified as the one of the main causes of thousands
of foreclosures across the country. Not only were these clauses frequent in
mortgage lending, but they were explicitly authorised by the Spanish Civil
Procedure Act, which mandates a minimum of three months in arrears before full
repayment of the debt can be claimed. Before a statutory modification in 2013,
lenders could even claim full repayment after one month of arrears. Following
the case law of the Spanish Supreme Court, however, accelerated repayment
clauses deemed unfair by lower courts because of the significant imbalance in
the parties’ rights and obligations to the detriment of the consumer could not
be declared void if they had not been effectively applied in the particular
case. Since lending institutions could rely on the Civil Procedure Act to claim
accelerated repayment instead of executing the—almost always unfair—accelerated
repayment contractual clause, courts were in fact prevented from declaring the
nullity of the latter and from suspending mortgage enforcement proceedings on
these grounds.

In Banco Primus, the referring court posed, amongst others, the
question whether domestic law and the judicial interpretation thereof could
prevent courts from declaring the nullity of unfair accelerated repayment
clauses in the event that they had not been effectively applied in the
particular case. The Court of Justice first recalled its previous case law
regarding unfair terms, and set out in detail the parameters which domestic
courts shall take into account in order to declare the unfairness of an
accelerated repayment clause on the basis of Directive 93/13/EEC. These
include, inter alia, the nature of the goods or services covered by the
contract and the means provided for in national law to enable the consumer to
remedy the effects of the loan being called in (§ 67). It then struck down the
interpretation of the Spanish Supreme Court, noting that ‘the prerogatives of
the national court ruling on whether a term is unfair, […], cannot be
contingent on whether that term was actually applied or not’ (§ 73). When the
national court determines the unfairness of a contractual term, ‘the fact that
that term has not been executed cannot, in itself, prevent the national court
drawing the appropriate conclusions from the ‘unfair’ nature of that term’ (§
73).

The practical consequences of
this judgment in the Spanish context are blunt: thousands of foreclosures and
evictions carried out on the basis on unfair accelerated repayment clauses
whose nullity domestic courts were prevented from declaring should have been,
in fact, void. Not only does this question the level of consumer protection
afforded to mortgagors by the Spanish authorities; but it also reveals, in the
author’s view, how Spanish mortgage law has successively been modified to
favour the interests of lending institutions to the detriment of mortgagors in
vulnerable situations.

A right to housing perspective

The two cases examined in this
entry are certainly illuminating, yet they are not the first ones revealing the
shortcomings of Spanish mortgage law in terms of consumer protection and in
terms of the right to housing. At the European Union level, other judgments of
the Court of Justice addressing this issue will sound familiar to some readers
(Aziz,
Sánchez
Morcillo and Abril García, Finanmadrid
EFC). At the international level, the UN Committee on Economic, Social
and Cultural Rights recently delivered its first decision under the Optional
Protocol to the ICESCR examining the judicial protection afforded to the right
to housing of individuals and families in the framework of mortgage enforcement
proceedings (I.D.G. v. Spain).

It should be borne in mind that
the right to adequate housing is enshrined, amongst others, in Article 7 of the
Charter
of Fundamental Rights of the European Union, which contains the right to
respect for private and family life. Framing mortgage law issues exclusively in
terms of consumer protection does not always capture the severity of the
situations that foreclosures and evictions may create: it is not merely about
financial institutions imposing unfair terms onto consumers with the indulgence
of public authorities, but also about individuals and families being denied
adequate judicial protection of their right to housing. Incorporating this
dimension into case law could serve to better contextualise the imbalance
between mortgagors and mortgagees by taking into account human rights
considerations, and strengthen the protection for mortgagors in terms of their
legal security of tenure.

By Cecilia Rizcallah, Research Fellow at
the Belgian National Fund for Scientific Research affiliated to the Centre of
Interdisciplinary Research in Constitutional Law of Saint-Louis University
(USL-B) and the Centre of European Law of the Free University Brussels
(ULB). The author wishes to thank the Professors E. Bribosia and S. Van
Drooghenbroeck for their valuable advice.

Introduction

On Thursday February
16th, the ECJ handed down a seminal judgment
in the case of C.K. and others,
C-578/16 PPU. This ruling was rendered on a reference for a preliminary ruling
from the Supreme Court of Slovenia asking, in substance, whether the risk faced
by an asylum seeker of being a victim of inhuman and degrading treatment because
of his/her individual situation, shall prevent his/her transfer to another
Member State to consider his/her asylum claim on the basis of the Dublin system.

The Dublin System: Cooperation between Member States
based on Mutual Trust

The Dublin system, initiated
by a Convention
signed in 1990 in the city whose name it bears, allocates responsibility for
examining asylum applications lodged by third country nationals (TCNs) in the
EU, in such a manner that, in principle, only one State has the task of
examining each asylum request lodged on the European Union’s territory. Pursuing harmonisation of Member states’
asylum policies, the Treaty of Amsterdam introduced the competence of the
European Community (Article 63 EC; now Article 78 TFEU) to adopt additional
measures in order to achieve a Common European Asylum System (CEAS). On that
basis, the Dublin Convention was replaced by the “Dublin II” Regulation
(Regulation n°343/2003) and then the “Dublin III” Regulation
(Regulation 604/2013). Also, a number of directives were adopted in order to
set up minimum standards on the qualification and status of refugees and
persons with subsidiarity protection (Directive
2011/95/UE), on asylum procedures (currently Directive
2013/32/UE) and on reception conditions for asylum-seekers (currently Directive
2013/33/UE).

The Dublin system,
which constitutes a fundamental part of the CEAS, has as its main goals to (i) ensure
the access of TCNs to the asylum application procedure and to (ii) rationalise
the treatment of asylum applications by avoiding forum shopping and the existence
of multiple applications. It therefore establishes a set of criteria which
determine which Member State is, in a particular situation, responsible for
examining the application of an asylum-seeker. The general rule is that (in
effect) the State of first entry into the European Union is the responsible
Member State, but there are several exceptions. If another Member State is
approached, that state can either, on the basis of the Dublin system, automatically
transfer the asylum seeker lodging the application to the responsible state,
but it can also – and it has a sovereign right to – decide to examine the
application itself as it so wish (Article 17, Dublin III Regulation: the “sovereignty-clause”).

It is important to
note that the Dublin system is underpinned by the fundamental idea of
equivalence of Member States’ asylum systems, presuming, therefore, that
asylum-seekers would not benefit from any advantage by having their application
examined in a specific country.

Summary of Previous Case Law of the ECJ: Preserving
Effectiveness of EU Cooperation, even at the Expense of Fundamental Rights

The automaticity of
the transfer of asylum-seekers between Member States, founded on the premise of
equivalence, quickly appeared problematic in terms of protection of
asylum-seekers’ fundamental rights. Notably due to their geographic situation, some
Member States were faced with a high number of arrivals that put their asylum-seekers’
reception infrastructures under pressure, and resulted in degradation of their
national asylum systems.

It did not take
long before challenges against transfer decisions were being introduced,
because of the risks faced by asylum-seekers regarding their fundamental rights
in the State which the Dublin system made responsible for examining their
applications. One of the first landmark rulings on this issue was handed down
by the European Court of Human Rights (ECtHR), in which Belgium was held liable
for breaching the European Convention on Human Rights (ECHR) by having
transferred an asylum seeker back to Greece on the basis of the Dublin system,
while this country, in its examination of asylum applications, was not
fulfilling the obligations under the ECHR. The ECtHR noted, in the case of M.S.S
c. Belgium and Greece(application n° 30696/09), that Belgium,
being aware of, or having a duty to be aware of the poor detention and
reception conditions of asylum-seekers in Greece, should have relied upon the “sovereignty-clause”
of the Dublin II Regulation, to refrain from transferring this individual to a
country where he faced a real risk of becoming a victim of inhuman and degrading
treatment in accordance with Article 3 ECHR.

Less than a year
later, the ECJ addressed the same issue with the additional difficulty of
having the duty to safeguard the Dublin system’s effet utile. In the famous N.S. case (C-411/10),
the Court was indeed asked whether “a State which should transfer the asylum
seeker [to the responsible Member State according to the Dublin regulation] is obliged
to assess the compliance, by that Member State, with the fundamental rights of
the European Union”. In addressing this
challenge, the ECJ relied - for the first time in the field of asylum - upon
the principle of mutual trust between Member States, founded on the presumption
that “all participating States [to the Dublin system] observe fundamental rights”, to conclude that it was inconceivable
that “any infringement of a fundamental right by the Member State responsible”
would affect the obligations of other Member States to comply with the Dublin Regulation
(§82).

To maintain the
effectiveness of the Dublin Regulation despite the existence of flaws in
national asylum systems, the ECJ innovated by introducing the “systemic
deficiencies test”, entailing that a transfer should be prohibited “if there are
substantial grounds for believing that there are systemic flaws in the asylum
procedure and reception conditions for asylum applicants in the Member State
responsible, resulting in inhuman and degrading treatment, within the meaning
of Article 4 of the EU Charter of Fundamental Rights (corresponding to Article
3 ECHR), of asylum-seekers transferred to the territory of that Member State,
the transfer would be incompatible with that provision” (§86).

To secure a clear,
effective and fast method for determining the Member State responsible for
dealing with an asylum application, the ECJ thus opted for a presumption of
compliance by Dublin States with fundamental rights which could be rebutted in
the presence of a “systemic deficiency in the asylum procedure and in the
reception conditions of asylum-seekers” where Member States would be compelled to
prevent the transfer (§89). This presumption of fundamental rights’ respect by
Member States was subsequently applied by the ECJ in other judgements (C-4/11, Puid and
C-394/12, Abdullahi). In fact, the latter judgment expressly limited
both the substantive and procedural grounds on which a Dublin transfer could be
challenged.

Heavily criticized,
this approach was condemned in Strasbourg with the Tarakhel
case (application n°29217/12), in 2014 in which the ECtHR reaffirmed and
specified its MSS judgement by ruling
that the Dublin system “does not exempt [national
authorities] from carrying out a thorough and individualized examination of the
situation of the person concerned and from suspending enforcement of the removal
order should the risk of inhuman and degrading treatment be established”.

Stonewalling, one
of the ECJ’s arguments against the draft agreement on the accession of the EU
to the ECHR (Opinion
2/13) was the ECHR requirement that Member States “check that another
Member State has observed fundamental rights, even though EU law imposes an obligation
of mutual trust between those Member States” (Opinion 2/13, §194). The Court’s “systemic deficiencies” test was consolidated
in the recast of the Dublin Regulation (Regulation 604/2013, Dublin III) whose Article
3(2) states that “where it is impossible to transfer an applicant to the Member
State primarily designated as responsible because there are substantial grounds
for believing that there are systemic flaws in the asylum procedure and in the
reception conditions for applicants in that Member State, resulting in a risk
of inhuman and degrading treatment within the meaning of Article 4 of the
Charter of Fundamental Rights of the European Union, the determining Member
State shall continue to examine the criteria set out in Chapter III in order to
establish whether another Member State can be designated as responsible”.

A first move from
this case law has recently been observed in another field of EU cooperation, namely
in EU criminal law. The question asked to the ECJ was whether detention conditions
incompatible with art. 4 of the Charter in a Member State issuing a EAW could
allow or oblige the executing judicial authority of a requested Member State to
refuse the execution of a European Arrest Warrant (EAW). Once again, the ECJ was
faced with the dilemma between securing a EU mechanism based on mutual trust or
taking human rights considerations seriously. In its landmark ruling in the
case Aranyosi
and Căldăraru (C-404/15), the ECJ considered that in the event of
“systemic or generalised, or which may affect certain groups of people, or
which may affect certain places of detention” deficiencies, and only if “there
are substantial grounds to believe that, following the surrender of that person
to the issuing Member State, he or she will run a real risk of being subject in
that Member State to inhuman and degrading treatment, within the meaning of
Article 4” (§94), the executing authority will have to postpone the
execution of the EAW.

Hence, a two-step
analysis has to be carried out by the national judge who must first assess the
existence of general or particular deficiencies in the detention system of the
requesting state, before examining, in concreto, whether the requested person
faces a real risk of being subject to inhuman and degrading treatment. It
remained, however, unclear whether the exception to mutual trust provided in Aranyosi and Căldăraru was more or less
protective of fundamental rights. Even though a second condition was added, the
deficiency requirement seemed softened.

The ruling of the ECJ in C.K. and others: A Welcome Step Towards Reconciliation Between the
Dublin system and Human Rights ?

Facts and Question referred to the ECJ

A couple with a
newborn child lodged an asylum application in Slovenia whereas Croatia was,
according to the Dublin criteria, responsible for examining their application.
Noting the absence of systemic flaws in the Croatian asylum system but
observing that the mother of the child was in a very bad state of health, the
Slovene court asked the ECJ whether the reliance upon the sovereignty clause (Article
17 of Dublin III) could be mandatory for the purpose of ensuring the family an
effective protection against risks of inhuman and degrading treatment. In other
words, the national judge inquired whether Dublin transfers were only prohibited
in case of the existence of systematic deficiencies in the responsible state,
subjecting asylum-seekers to risks of violations of Article 4 of the Charter,
or whether a transfer also had to be precluded when such a risk was faced due
to the specific and individual situation of a particular asylum seeker.

The opinion of the Advocate General

Following the NS and Abdullahi approach, the opinion of Advocate General Tanchev argued
that only systemic flaws in the responsible State could require the prevention
of a Dublin transfer. Unsurprisingly, he justified his opinion on the principle
of mutual trust between Member States and on the need to ensure the
effectiveness of the CEAS (§51). He further acknowledged that his position did
not meet ECtHR standards but stressed that the EU was not bound by it (§52). He
moreover underlined that Article 17 of the Regulation constituted a
“discretionary” clause which, by definition, could not be construed as imposing
obligations on Member States (§ 67).

The judgment of the Court

The fifth Chamber
of the ECJ - quite uncommonly - did not follow the Advocate General’s opinion. To
the contrary, the ECJ stated that, besides situations where “systemic
deficiencies” exist in the responsible state, any transfer of asylum-seekers shall
be excluded where it gives rise to a real risk for the individual concerned to
suffer inhuman or degrading treatment, within the meaning of Article 4 of the
Charter. Relying upon Article 52§3 of
the Charter, the ECJ recalled that corresponding rights guaranteed both by the
Charter and the ECHR should receive the same scope as those laid down by the
Convention.

It then quoted
Strasbourg’s recent ruling in Paposhvili
v. Belgium (application n° 41738/10, § 175) according to which “illness
may be covered by Article 3 [of the ECHR], where it is, or risks being, exacerbated by treatment, whether
flowing from conditions of detention, expulsion or other measures, for which
the authorities can be held responsible”. Consequently, despite the absence of
systemic deficiencies in the Croatian reception conditions of asylum-seekers
(§7), Slovenia was required to suspend the transfer due to the fact that it
could result, because of the particular medical condition of the immigrant, in
a real risk of serious and irremediable deterioration of her health condition
(§84). The suspension should, according to the judgement, be maintained as long
as that risk exists. On the basis of its ruling in Aranyosi, the Court also stressed that national authorities were
required to assess the risk before transferring an individual (§76).

The Court added
that if the state of health of the migrant was not expected to improve, the relevant
Member State had the possibility to itself examine the asylum application on
the basis of the sovereignty clause contained in Article 17§1 of the Regulation
(§96). However, this provision does not, according to the ECJ, oblige a Member
State to examine any application lodged with it, even when read in the light of
Article 4 of the Charter.

The ECJ finally concluded
that this holding “fully respected the principle of mutual trust since, far from
affecting the presumption of respect of fundamental rights by Member States, it
ensures that exceptional situations are duly taken into consideration by Member
States” and furthermore, that “if a Member State proceeded to the transfer of
an asylum-seeker in such circumstances, the resulting inhuman and degrading treatment
would not be attributable, neither directly or indirectly, to the authorities
of the responsible Member State, but solely to the first Member State”.

Comments

The ruling of the fifth
Chamber seems to introduce a crucial change in the case law of the ECJ
regarding the relationship between the principle of mutual trust and the
protection of individuals against inhuman and degrading treatment. Instead of putting
these two imperatives in competition, the Court seems, for the first time, to obviously
acknowledge their necessary interdependence. By considering that the principle of mutual
trust would be enhanced by an effective application of Article 4 of the
Charter, the ECJ finally appears to take seriously the fact that this principle
is precisely founded on the respect by Member States of EU values including,
above all, the principle of human dignity to which the prohibition of inhuman
and degrading treatment is closely linked (Article 2 TEU).

It is therefore not
only in case of systemic or generalised flaws in the asylum system of a
responsible Member State that a transfer may be prevented. Specific and individual
considerations of asylum-seekers must be taken into account in order to assess
whether he or she could suffer treatment incompatible with Article 4 of
the Charter because of his/her transfer. The Court moreover endorses this
requirement by holding that in case of failure in addressing this risk, the
first Member State will shoulder responsibility for breach of the Charter.

It should however
be stressed that, while the first judgements prioritising the principle of
mutual trust were delivered by the ECJ Grand Chamber, the ruling in the case at
hand was handed down by a Chamber of five judges whose authority could be
considered as being weaker. Nevertheless, the ruling follows the general
evolution of the case law of the ECJ which already underlined several times,
following the last recast of the Dublin regulation, the fact that the changes
of the system were “intended to make the necessary improvements, in the light
of experience, not only to the effectiveness of the Dublin system but also to
the protection afforded applicants under that system” (C-63/15, Ghezelbash,
§52) The latter judgment (from June 2016) had already overturned the procedural
aspects of the Abdullahi judgment;
the CK ruling now overturns the
substantive aspects.

This valuable step
in favour of asylum-seekers’ fundamental rights protection nevertheless raises
a number of practical questions. One could ask first – and this question was
already put forward by other commentators – whether the risk of the violation
of other fundamental rights than the prohibition of inhuman and degrading
treatment must justify an exception to the Dublin distribution of
responsibilities and, thereby, to the principle of mutual trust. We think that,
given the emphasis put by the Court on the exceptional character of the
situation, not any breach of any fundamental rights would prevent Member States
to rely upon the principle of mutual trust in order to transfer an
asylum-seeker. To the contrary, only very serious risks of violation of
absolute fundamental rights (Chapter I of the Charter) would in our view
justify a mandatory suspension of the transfer of asylum-seekers.

Additionally, the
ruling raises questions as regards the consequences of a suspension. As pointed
out by the Court, a Member State would never be obliged to itself assess, on
the basis of the sovereignty clause (Article 17.1 Dublin III), an asylum
application which falls within the responsibility of another State. What if,
because of the individual situation of the asylum seeker, the transfer should
be suspended in the long term? The finding of the ECJ could then result in the
existence of “refugees in orbit”, asylum-seekers who lose the certainty of
having their application examined by any Member State of the Union – something
which the Dublin system especially seeks to prevent and that could, in itself,
constitute an inhuman and degrading treatment.

Finally, the
question of the applicability of this approach to EU criminal cooperation should
also be raised. The Court seemed, until its holding in the Aranyosi case, very reluctant to acknowledge any exception to the
principle of mutual trust in the framework of the European Arrest Warrant (see,
among others, the cases C-396/11 Radu
and C-399/11, Melloni).
The ruling in C.K. should however, in
our opinion, be seen as applicable also in the field of criminal cooperation if
such exceptional circumstances are met since the ruling especially relies upon
the judgment in Aranyosi and also due
to the absolute character of the prohibition laid down in art. 4 of the Charter
Now the two lines of case law have been brought together, but they raise
parallel questions about the long-term consequences. Indeed, the Court of
Justice has already been asked to elaborate on the Aranyosi ruling, in the pending Aranyosi
II case. So its ruling in that case may be equally relevant to Dublin
cases.

In any case, the
change of position of the ECJ seems much more in compliance both with the ECHR
and, also, with the constitutional requirements of certain national legal
orders. Indeed, the German Constitutional Court did not hesitate, in its judgment
of 15 December 2015, to make an exception to the principle of mutual trust, as
implemented by the EAW system, in order to protect the right of human dignity,
which, according to this ruling, forms part of German constitutional identity.

One can henceforth wonder
whether the C.K. and Aranyosi rulings generally overturn the Opinion 2/13 argument based on the
principle of mutual trust opposed, among others, by the ECJ against the EU’s draft
accession agreement to the ECHR… Either way, this new setting should, without a
doubt, have an important impact on today’s and future’s relationships between the
EU legal order, on the one hand, with the ECHR and national legal orders, on
the other.

Friday, 17 February 2017

Gesa
Kübek,
PhD candidate at the law faculty of the University of Passau.

On 14th February
2017, the European Court of Justice (ECJ) concluded, in Opinion
3/15, that the European Union (EU) is exclusively competent to conclude
the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who
Are Blind, Visually Impaired, or Otherwise Print Disabled (hereafter: Marrakesh Treaty). Its
decision in Opinion 3/15 mirrors, at
first sight, Advocate General (AG) Wahl’s Opinion,
which equally argued that the EU has exclusive competence to conclude the
Marrakesh Treaty. A closer look at Opinion
3/15, however, reveals that the Court opted for a much stricter
interpretation of the scope of the EU’s Common Commercial Policy (CCP) – ie the
EU’s international trade powers – than the AG. Moreover, the Court’s answer to
the question of exclusivity does not clarify the correct choice of legal basis.

The following blog
post provides an overview of the Court’s Opinion
3/15 and a short analysis thereof. The first part describes the conflict at
stake and the arguments of the parties. The second part outlines the Court’s position.
The final section discusses some of the implications of Opinion 3/15 for EU treaty-making.

The conflict at stake: Questions of exclusivity and the
choice of legal basis

In June 2013, the
World Organisation on Intellectual Property (WIPO) finalised the negotiations
of the Marrakesh Treaty, which aims to facilitate access to published work for
persons who are blind, visually impaired or otherwise print disabled (hereafter:
“beneficiary persons”). The Marrakesh Treaty stipulates two separate, but
interrelated instruments to fulfil its objectives. First, it obliges its
contracting parties to provide for an exception or limitation to the rights of
reproduction, distribution and making available to the public in order to make
format copies more readily available for beneficiary persons. Second, it
facilitates the cross-border exchange of accessible format copies.

In April 2014, the EU
Council decided
to sign the Marrakesh Treaty for the European Union based on Article 207
TFEU (the EU’s CCP power) in conjuncture with Article 114 TFEU (the EU’s internal
market power, which is the basis for harmonising copyright law within the EU,
among other things). The subsequent Commission proposal
for the conclusion of the agreement was, however, rejected by the Member States
as represented in the Council, which caused fierce institutional debate over
the choice of legal basis. According to the Commission, Arts. 207 and 114 TFEU were
correctly selected. In the alternative, the Marrakesh Treaty may be based on
the CCP alone, which the Lisbon Treaty confirms as an exclusive competence
(Art. 3 (1) (e) TFEU). In any event, the Commission argued that the rights and
obligations comprised by the Marrakesh Treaty were largely harmonized by EU
internal legislation. As a result, it asserted that exclusive EU competence can
be implied (Art. 3 (2) TFEU).

The eight intervening
Member States rejected the assumption of EU exclusivity. Instead, in their
view, the competences to conclude the Marrakesh Treaty ought to be shared,
which may result in the conclusion of a “mixed agreement” that lists both the
EU and the Member States as contracting parties. Given the persisting
institutional conflicts, the Commission asked the Court to clarify whether the
EU has the exclusive competence to conclude the Marrakesh Treaty.

As was stated
above, AG Wahl supported the Commission’s quest for exclusive EU treaty-making
powers. Somewhat surprisingly, the AG, however, determined that the Marrakesh
Treaty should be concluded on the basis of Art. 207 TFEU on the CCP and – as
contended by numerous Member States - Art. 19 (1) TFEU, the EU’s power to adopt
many non-discrimination laws. The latter provision underlines the Marrakesh Treaty’s
objective to promote non-discrimination, equal opportunity, accessibility and
participation of disabled persons in the society. Despite the implication of
exclusivity, the choice of Art. 19 (1) TFEU entails important procedural
consequences: As the provision stipulates that the adoption of EU legislation
requires unanimity in the Council, EU treaty-making under the
anti-discrimination power equally grants the Member States veto powers in the
Council (Art. 218 (8) TFEU).

The Court‘s position in Opinion 3/15

In order to answer
the preliminary question, the Court, first, examined whether the Marrakesh
Treaty, in full or in part, falls within the scope of the CCP. Thereafter, the
ECJ analysed whether exclusivity can be implied within the meaning of Art. 3
(2) TFEU.

The reach of “commercial aspects of intellectual property
rights

”

To start with, the
Court recalled that according to settled case-law, an EU act falls within the
CCP “if it relates specifically to international trade in that it is
essentially intended to promote, facilitate or govern trade and has direct and
immediate effects on trade” (Daiichi Sankyo). Conversely, the mere fact that an EU act is liable to have
implications on international trade is not enough for it to be concluded under
the CCP.

In its subsequent
reasoning, the Court outlined that neither one of the aforementioned
instruments of the Marrakesh Treaty intends to promote, facilitate or govern
international trade. The Court’s Opinion is particularly striking with regard
to the import and export of format copies, as “there is no doubt that those
rules relate to the international trade of such copies” (para 87).
Nevertheless, the Court stated that the cross-border exchange specified by the
Marrakesh Treaty cannot be equated with international trade for commercial
purposes. On the one hand, the objective of the circulation and exchange of
format copies is non-commercial in nature. The Marrakesh Treaty solely uses
cross-border transactions as a mean to improve access of beneficiary persons to
accessible format copies and not to promote, govern or facilitate trade. On the
other hand, the Marrakesh Treaty’s non-commercial character results from the
fact that it does generally not stipulate trade for profit.

Indeed, the
Marrakesh Treaty provides that trade in format copies covers only authorised
entities, which operate on a non-profit basis and provide their service to
beneficiary persons alone. According to AG Wahl, the non-profit basis of trade
in format copies, is, however, irrelevant for the application of the CCP. To
that extent, the AG proposed a very broad definition of commercial aspects of
intellectual property rights (IPR), which Article 207 (1) TFEU expressly
includes within the scope of the CCP. In his view, the CCP does not exclude
from its ambit transactions or activities of a non-commercial nature as the
mere exchange of goods and services implies that they are being traded. Instead,
Art. 207 (1) TFEU excludes non-commercial aspects of IPR, i.e. issue areas that
are not strictly or directly concerned with trade in their entirety, such as
moral rights.

The Court, however,
rejected the claim that commercial aspects of IPR carve out only those rules
relating to moral rights. Such a broad interpretation would, in the eyes of the
Court, “lead to an excessive extension of the field covered by the common commercial
policy by bringing within that policy rules that have no specific link with
international trade.” (para 85) Consequently, the ECJ concluded that the
Marrakesh Treaty falls outside the ambit of the CCP.

Implied exclusivity and the “ERTA doctrine”

Subsequently, the
Court analysed whether exclusivity can nevertheless be implied via the
well-known “ERTA doctrine” (referring to the Court’s
ERTA judgment), which is codified
in Article 3 (2) TFEU. According to this doctrine, EU obtains exclusive treaty-making
powers where the conclusion of an international agreement “may affect common
rules or alter their scope”. In its ERTA line of case law, the Court has
developed a two-level test for establishing external Member State pre-emption:
First, it conducts a “comprehensive and detailed analysis” to determine whether
the provisions of the envisaged agreement are largely covered by common EU
rules (Opinion
2/91). Second, it determines whether the conclusion of the
international agreement affects the “uniform and consistent application” of
these common EU rules “and the proper functioning of the system which they
establish.” (Opinion 1/13, discussed here).

There was little
disagreement between the parties that the Marrakesh Agreement had to be implemented
within the framework of Directive
2001/29 on the harmonisation of certain aspects of copyright and related
rights in the information society. The
Court, however, pointed out that “it is clear (..) that the EU legislature
brought about only a partial harmonisation of copyright and related rights,
given that the directive is not intended to remove or to prevent differences
between national laws which do not adversely affect the functioning of the
internal market.” (para 115) Indeed, Directive 2001/29 provides, within its
harmonized legal framework, for considerable Member State discretion as regards
the implementation of exceptions and limitations to distribution for the
benefit of people with disabilities. Does such a residual Member State
competence mean that the Marrakesh Treaty is not largely covered by common EU
rules, and therefore prevent implied exclusivity?

The Court answered
this question in the negative. Directive 2001/29 subjects the Member States’
remaining competence to a number of conditions. The Member States’ discretion
can therefore only be exercised within the limits enjoined by EU law, so that
the Member States “are not free to determine, in an un-harmonised manner, the
overall boundaries of the exception or limitation for persons with a disability.”
(para 122) Moreover, the Marrakesh Treaty – unlike Directive 2001/29 – imposes an
obligation on the contracting parties to provide for an exception or limitation.
The Member States are therefore mandated to comply with the restraints imposed
by EU law. As a result, the Court concludes that independent external Member
State action would affect common EU rules. The EU is therefore exclusively
competent to conclude the Marrakesh Treaty.

Opinion 3/15 and EU treaty-making: A short analysis

As stated in the
introduction, the Court’s finding of (implied) exclusivity does not come as a
surprise to many observers. Neither does the broad interpretation of the
“largely covered” part of the ERTA-test.
After all, the Court already confirmed in Opinion
1/03 and, more recently, in Green
Network, that considerable Member State discretion in the
implementation of EU legislation does not rule out exclusivity. Nevertheless,
as was pointed out by AG Wahl, the case law “begs the question: when is an area
sufficiently covered by EU rules to exclude Member State competences to act
externally?” (para 130 of the opinion) By inference, to what extent does the EU
have to exercise its internal competence to trigger the “ERTA effect”?

Green Network and Opinion 3/15 suggest that the Court will
place much greater emphasis on the effects of international agreements on
common EU rules, rather than on the extent of their material overlap. Even if
the EU law in place specifies residual Member State powers, and is therefore,
arguably, not largely harmonised, (adverse) affects on the EU’s internal legal
framework suffice to trigger implied exclusivity within the meaning of Art. 3
(2) TFEU. However, if the Member States may be pre-empted where an agreement is
only partially covered by EU internal legislation, may they be also pre-empted
where the EU cannot exercise its internal competence at all, provided always
that the envisaged agreement clearly affects the EU law in force? The Court is
expected to answer this question in its pending Opinion 2/15 on the conclusion of the EU-Singapore Free Trade
Agreement (discussed here).
Here, among other things, the Court is asked to determine whether the “ERTA
effect” may exceptionally be triggered by EU primary law provisions.

The Court’s
clarification of the scope of Art. 207 (1) TFEU, and in particular, “commercial
aspects of IPR”, might also have some impact on future EU treaty-making. Opinion 3/15 shows that the mere exchange
of goods or services cross-border is not enough to equate a measure with
international trade for commercial purposes. Instead, a link with trade implies
that the transaction or activity aims at fulfilling a commercial objective. By
inference, using trade as a mean to fulfil non-commercial objectives is not
enough to bring a measure within the scope of the CCP. While the Court did not entirely
exclude that “commerce” may, on a case-by-case basis, include trade on a
non-profit basis, it contrasted AG Wahl’s suggestion that Art. 207 TFEU
generally encompasses transaction or activities of a non-commercial nature. In
view of Opinion 2/15, which also
raises this issue, it may be noted that the Court did not dispute the AG’s
claim that moral rights fall outside the scope of the CCP.

When returning to
the Marrakesh Treaty, Opinion 3/15
leaves another pressing question unanswered: What is the correct legal basis for
the agreement’s conclusion? The Court only clarifies that the Council Decision
on the signature of the Marrakesh Treaty was wrongfully based on Art. 207 TFEU,
but does not further elaborate on the correct choice of legal basis. It is true
that the Commission’s preliminary question is confined to the exclusive nature
of the agreement. The choice of legal basis, nevertheless, qualifies the modus operandi of (exclusive) EU
treaty-making. In particular, the Court refrains from discussing AG Wahl’s reference
to Art. 19 (1) TFEU, and, more broadly,
the effects of the non-discrimination principle on EU external action. Whilst
clarifying the EU’s capacity to conclude the agreement alone, the choice of
legal basis – and therefore the choice of procedure – is left to the discretion
of the EU institutions. Throughout the proceedings, the Commission continued to
assert that the Marrakesh Treaty should be based on Art. 114 TFEU instead of Art.
19 TFEU. Conversely, the majority of the intervening Member States sided with
the AG. As the use of Art. 19 (1) TFEU would trigger unanimous Council voting,
and therefore Member State veto powers in the Council, institutional debate
over the conclusion of the Marrakesh Treaty might continue.

The recent ruling
of the Court of Justice (CJEU) of 9 February 2017 in the
case of M v Minister for Justice
and Equality, Ireland and Anor in is the fourth time that Court has given
judgment on Ireland’s unique and evolving
procedure for determining claims for Subsidiary Protection. Subsidiary Protection is a
European Union law status provided for by the Qualification Directive (originally Directive
2004/83, now Directive
2011/95 – although Ireland, like the UK, only opted in to the former
version) that is designed to complement the protection for
refugees provided by the 1951 Refugee Convention.

Subsidiary Protection protects those
who do not fit the strict definition of a refugee, but who are nonetheless at risk of serious harm in
their home country. Ireland has up to now dealt with these two types of
(similar, but not identical) claims via entirely separate decision-making
processes.

The litigant (‘M’), a Rwandan national, brought test
case litigation on the Irish procedure on 6 January 2011. At the time, all
subsidiary protection applications were determined by the Minister for Justice in
an administrative procedure that carried no right of
appeal. The ensuing protracted litigation included two
references to the CJEU from two different
Irish Courts; the most recent, a reference from the
Supreme Court, is considered in the ECJ’s recent judgment.

The Irish system has undergone significant
changes over the years during which M’s case has been in train, rendering
the Court’s findings somewhat moot; however the case speaks to a
fundamental principle of EU law: the right to be heard in matters that
significantly affect one’s interests.

The facts of
the case

M, a law graduate, made an asylum application in
Ireland in May 2008. He was interviewed and his claim was
rejected at first instance in August 2008. M’s subsequent appeal to
the Refugee Appeals Tribunal was refused, in October 2008. The appeal was on
the papers: the first instance decision-maker had invoked a provision in Irish
law that denied him an oral appeal (on account of his having delayed before
making his asylum claim). M subsequently lodged a claim for subsidiary protection.

At that time, the Irish system was structured in such
a way that individuals could not simultaneously claim both asylum and
subsidiary protection. Only once an asylum claim
was finally determined, could a person claim subsidiary
protection (or indeed permission to remain on other
grounds). All claims for subsidiary protection were decided by the Minister for Justice
(as distinct from asylum claims, which were decided by an independent body). No
personal interviews were carried out for these types of claim, and
there was no right of appeal. In M’s case his claim for subsidiary protection was
rejected in writing on 30 September 2010. The delay – of almost two years – was
not uncommon. The Minister’s decision relied to a large extent
on the two earlier decisions that had rejected M’s claim for asylum, and
in particular the negative credibility findings therein.

M challenged the Irish procedure in
the High Court, who referred the following question to the CJEU for a
preliminary ruling:

‘In a case where
an applicant seeks subsidiary protection status following a refusal to grant
refugee status and it is proposed that such an application
should be refused, does the requirement to cooperate
with an applicant imposed on a Member State in Article 4(1) of … Directive
2004/83 … require the administrative authorities of the
Member State in question to supply such applicant with the results
of such an assessment before a decision is finally made so as
to enable him or her to address those aspects of the proposed
decision which suggest a negative result?’

The CJEU, in its judgment
of 22 November 2012, M. (C-277/11, EU:C:2012:744), answered
this question in the negative. However, somewhat unusually, the CJEU
went on to consider a further question: whether M’s ‘right to be heard’ had been
respected. The CJEU found that it had not: M should have been afforded an
opportunity to make his views known before a decision was reached on his claim
for subsidiary protection. The fact that M had had an interview for his earlier
asylum claim was insufficient.

The case returned to the Irish High Court,
who held on 23 June 2013 that the Minister for Justice had wrongly failed
to afford M an effective hearing when his application for subsidiary protection
was being examined. The Minister brought an appeal against that
decision before the Supreme Court and M also brought a
cross-appeal – neither party considered the High Court had correctly
interpreted the CJEU judgment.

While that appeal was pending, on 14 November
2013, the Irish authorities changed the procedure to give effect to the
High Court judgment. Personal interviews for applicants for
subsidiary protection were introduced, as were full appeal rights to
the Tribunal. However instead of fusing the decision-making process for the two
claims (as is done in all other EU States) the new procedure dealt with the applications
separately: one claim after the other. Applicants for international protection, if
unsuccessful, were put through a near-identical process, twice: a personal interview, a first
instance decision, an appeal to the Tribunal, another personal interview, another
first instance decision and a further appeal. This process, naturally, gave
rise to delays.

Meanwhile M’s test case litigation continued. The
Supreme Court stayed the proceedings and on 24 November 2014 referred another
question to the CJEU:

‘Does the “right to be
heard” in European Union law require that an applicant for
subsidiary protection, made pursuant to Council Directive
2004/83/EC, be accorded an oral
hearing of that application, including the right to call or
cross-examine witnesses, when the application is made in circumstances
where the Member State concerned operates two separate procedures, one
after the other, for examining applications for refugee
status and applications for subsidiary protection,
respectively?’

On 9 February 2017, the CJEU gave
judgment. The Court held that, as Ireland was not operating a single procedure
to determine asylum and subsidiary protection (the model employed by
other European Union States), the Procedures Directive (Directive 2005/85;
Ireland opted out of the later Directive 2013/32,
which replaced it) did not apply to claims for subsidiary protection in Ireland.
This reiterated a point the CJEU had settled previously, and most recently
restated last year (in another Irish case): Danqua
v Minister for Justice and Equality Ireland [2016] EUECJ C-429/15. The CJEU emphasised that the right to be heard was an
important general principle of EU law. When making a decision that
significantly affects a person’s interests (as here), the State
must ensure that their right to input into
that decision is facilitated, so as to give full effect to the
right to be heard.

The CJEU went on to discuss the scope
of that right, finding that a personal interview would not
necessarily be required for all subsidiary protection claims, given that a
substantive asylum interview would already have been
carried out. The Irish authorities had essentially played it safe
after the CJEU’s first judgment in this case, by bringing in personal interviews
across the board, for all subsidiary protection cases. The CJEU clarified that what it
had meant was that there must be some way for an applicant’s views to be heard.
This could be in writing or by personal interview – depending on the
individual case. Some cases may require a fresh interview, and some may not.

The CJEU made clear that the Irish authorities are free to rely on the information gathered in the course of assessment of an asylum claim (including statements made
in an interview or at a hearing) when it comes to assess the claim for subsidiary protection. The critical matter is that the state must carry out
an individualised assessment of the
relevant facts; whether an interview is necessary so to do – in the
particular situation of Ireland’s bifurcated system for
assessing international protection claims – is fact-specific.

Further
developments

The outcome of the CJEU decision has been
overtaken by recent events. On 31 December 2016 a new procedure for
international protection claims was brought into force via
the commencement of relevant sections of the International
Protection Act 2015. The Act provides for a
new, fused ‘single procedure’ whereby asylum and subsidiary protection claims
will be assessed at the same time and determined in one decision.
That decision, if negative, can be appealed to the Tribunal on both asylum
and subsidiary protection grounds (in the same hearing, for the first time). The introduction of a single procedure brings Ireland into line with
the rest of the European Union. The new system,
once fully up and running, is likely to result in a reduction of
delays in what had developed over the years into an overly prolonged system for assessing international
protection claims.